A new duty on employers to prevent the sexual harassment of their employees will come into force on 26 October 2024. We explain what this means for employers and how to prepare your business for this change.
What is sexual harassment?
Sexual harassment is defined as unwanted conduct of a sexual nature. This can be any unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
What is changing?
Sexual harassment is already prohibited under the Equality Act 2010. However, while employers can already be held liable for any harassment which occurs, numerous surveys have confirmed that a high level of sexual harassment still takes place in UK workplaces, highlighting the need for new legislation.
The Worker Protection (Amendment of Equality Act 2010) Act (the “Act”) which will be incorporated into the Equality Act, will change this. The Act introduces a new positive duty on employers who now must take reasonable steps to prevent sexual harassment in both the workplace and at work-related events.
The new duty signifies a move to proactive measures in the fight against sexual harassment. While the definition of sexual harassment will not change, the Act will strengthen existing protection as it places much broader obligations on employers than the current legislation.
It is expected that ‘reasonable steps’ will be context specific. For example, tribunals are likely to consider the size of a business and also which sector or industry it operates in when determining whether an employer has met the requirements of the Act.
What is not changing?
The new Act relates only to sexual harassment. Other forms of harassment and harassment which is sex-related but not of a sexual nature will not be covered by these changes. For example, colleagues making derogatory remarks about a female co-worker’s capabilities based on her sex would be sex-related harassment, but not sexual harassment because there is no sexual element to the remarks.
Further, while there is no explicit requirement, it is likely the new mandatory duty will encompass an obligation on employers to manage the risk posed by third parties to its workforce.
What are the practical effects of the Act?
Under the Act, Tribunals will have power to ‘uplift’ compensation by as much as 25% where they decide an employer has breached its duty to prevent sexual harassment. Considering there is no cap on the amount which can be awarded under a harassment claim, this uplift could represent a significant increase in compensation.
In addition, the Equality and Human Rights Commission (“EHRC”) will have the power to directly enforce the Act. The EHRC will have the ability to issue notices to employers it considers are in breach of the Act and require them to create an action plan for dealing with these breaches.
Individuals will not be able to bring a free-standing claim alleging an employer’s failure to comply with this new duty. They will need to bring a sexual harassment claim and, if their claim is successful, the Tribunal will consider whether an uplift in compensation is appropriate.
What can employers do to prepare?
It is anticipated that technical guidance will be published before the duty comes into force, most likely in the form of an updated EHRC Code. In the meantime, as it is not yet clear what ‘reasonable steps’ are, employers may wish to consider the following:
- Updating polices which deal with sexual harassment.
- Providing training on sexual harassment, for staff, but also for managers on how to manage any sexual harassment allegations raised with them by direct reports.
- Ensuring your workforce clearly understand how to report an incident and are clear on how this will be dealt with by the business.
- Conducting a staff survey to test the temperature on the culture of the business and to identify any risk issues.
- Considering which measures might be required to reduce the risk of sexual harassment by third parties whom your staff come into contact with.
Please contact the Employment team at Hamlins if you would like to discuss how best to prepare for compliance with this new duty.
